Citation Nr: 1100480
Decision Date: 01/05/11 Archive Date: 01/14/11
DOCKET NO. 09-01 035 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to an increased rating for posttraumatic stress
disorder (PTSD), currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: American Red Cross
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. N. Moats, Counsel
INTRODUCTION
The Veteran had active duty service from December 1968 to July
1970.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a July 2008 rating decision by a Regional Office
(RO) of the Department of Veterans Affairs (VA). A notice of
disagreement was received in September 2008, a statement of the
case was issued in November 2008, and a substantive appeal was
received in January 2009. The Veteran testified at a Board
hearing in October 2010.
He submitted additional evidence at the Board hearing along with
a waiver of RO consideration of this evidence. Nevertheless, in
light of the need to remand for further development, the RO will
have the opportunity to review this evidence.
The issue of entitlement to service connection for
prostate disability has been raised by the record, but has
not been adjudicated by the Agency of Original
Jurisdiction (AOJ). Therefore, the Board does not have
jurisdiction over it, and it is referred to the AOJ for
appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran is seeking a rating in excess of 50 percent for his
service-connected PTSD. The Veteran was afforded a VA
examination in May 2008. At the Board hearing, the Veteran
testified that due to trouble getting appropriate treatment and
medications, his PTSD had worsened in the past year. While a new
examination is not required simply because of the time which has
passed since the last examination, VA's General Counsel has
indicated that a new examination is appropriate when there is
evidence of an increase in severity since the last examination.
VAOPGCPREC 11-95 (1995). Thus, based on the Veteran's hearing
testimony indicating a possible increase in the severity of
symptoms, the Board finds that a new VA examination is necessary
to determine the current severity of the Veteran's PTSD.
Further, in his hearing testimony, the Veteran indicated that he
has received continuous treatment at the VA for his PTSD.
However, it appears that the most recent VA treatment records
associated with the claims file are from November 2008. As VA
medical records are constructively of record and must be
obtained, the RO should obtain VA treatment records from November
2008 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2
Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following actions:
1. The RO should obtain VA treatment
records from November 2008 to the present.
2. The Veteran should be scheduled for an
appropriate VA examination to determine the
current severity of his PTSD. The claims
folder must be made available to the
examiner and reviewed in conjunction with
the examination. The examiner should be
asked to comment on the severity of the
Veteran's PTSD, to include whether the
Veteran has any occupational or social
impairment due to his service-connected
PTSD. Examination findings should be
reported to allow for evaluation of PTSD
under 38 C.F.R. § 4.130, Diagnostic Code
9411. A GAF score should be reported.
3. After completion of the above and any
further development deemed necessary by the
RO, the RO should review the record and
determine whether an increased rating for
PTSD is warranted. Unless the benefit
sought is granted in full, the Veteran and
his representative should be furnished an
appropriate supplemental statement of the
case and be afforded an opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet.App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).